Risk Regulation and Administrative Constitutionalism by Elizabeth Fisher
| Published date | 01 September 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00772_1.x |
| Date | 01 September 2009 |
| Author | Veerle Heyvaert |
ing uniform texts, o⁄cial languages and their translation andthe transition from
ULIS (the old Uniform Law on International Sale) to the CISG. It should be
requiredreading for any serious student of the CISGand of the process of harmo-
nising law.
To conclude, these are very di¡erent books serving quite di¡erent purposes.
There is much of interest in both of them.
Michael Bri dge
n
Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism,
Oxford: Hart Publishing, 2007, 256 pp, hb d48.00.
Elizabeth Fisher’s Risk Regulation and Administrative Constitutionalism is the winner
of the 2008 SLS Peter Birks First Prize for Outstanding Legal Scholarship.Even
in a year of many worthycontenders, it is hard to conceive of a more deserving
work to claimthe top spot.
At the core of the book lies the proposition that debates about the process of
technological risk regulation are, essentially, debates about the nature of adminis-
tration.When reviewing, say, a regulatory decision to restrict the marketing of a
new food additive, reviewing bodies are guided by and in turn contribute to
administrative constitutionalism: a body of ideas and norms on the legal and
legitimate conduct of public administration. The author analyses these debates in
a wealth of di¡erent fora and on this basis maps out two prevalent views of
administrative constitutionalism: rational-instrumental (‘RI’) and deliberative-
constitutive (‘DC’). Brie£y, the RI model views administration as an agent of
the legislature bestowed with a set of discrete analytical tasks that, if performed
methodically and rigorously, enable it to exertcontrol overchallenging, but ulti-
mately scienti¢cally knowable and manageable, technological risks. The DC
approach, in contrast, sees therole of public administration as oneof £exible pro-
blem-solving of complex socio-economic disputes. Administrators are less con-
strained by rigid risk identi¢cation/assessment/management recipes, but are
expected to marshal their experience and professional expertise to ensure that
relevant social, economic, scienti¢c and other perspectives are duly aired and
deliberated upon.Whereas the acceptability of the RI administrator’s behaviour
is primarily judged on technical-methodological grounds, the DC administrator
is in the ¢rst place accountable for the quality of the deliberative process.
After articulatingthe main features ofthe RI and DC models,Fisher sets out to
reframe and thereby shed new light on famil iar risk regulation dilemmas through
the lens of administrative constitutionalism. In an analysis of almost staggering
scale, the book revisits the UK regulatory response to the BSE crisis; US judicial
reviewof executive agency rule-making; Australian merits reviewof precaution-
ary decision-making; assessment of domestic and regional risk regulation in the
context of trade disputes at theWTO level; and the EUapproach to the precau-
n
Law Department,London School of Economics
Reviews
873
r2009 The Authors. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(5) 867^881
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